Harriet Miers and Abortion

Who knows?

The fact that Harriet Miers indicated that she would support a ban on abortions in all cases except where a mother's life was in danger means. . .

NOTHING.

Some conservatives are finding a nugget of comfort in the revelation that years ago Ms. Miers responded to a pre-election questionnaire with a response indicating her opposition to abortion in almost all cases.

Some liberals are, as a result of the same revelation, cooking up questions designed to put an end to the entire Miers fiasco.

But, as Ms. Miers no doubt knows, she will have to put aside her personal views on abortion should she ever in fact find herself seated on that bench from which she will have an opportunity to rule on an abortion case.

Roe v. Wade could be with us for a long time.  Lawyers are taught, from the first moment of law school, to value precedent -- to give incalculable weight to prior decisions of the court.  The importance of legal precedent cannot be underestimated in our system of justice.  Lawyers are paid to advise clients of the probable outcome of various courses of action -- advice which they render on the basis of precedent.  Why do we teach our young people about Hammurabi's Code in high school?  Because the establishment of precedent is followed by a certain degree of order (which, given that we are human, is always relative to one degree or another) -- and Hammurabi's utilization of that concept was a watershed event in human history. 

Harriet Miers as Madame Justice Miers might find it well nigh impossible, despite the sincerity and unshakeability of her personal convictions, to do anything in the context of an abortion case other than to apply the Constitution as it has been interpreted thus far and, for instance, to determine that the parental notification rule in the case presently pending before the Court is outside the limits established by prior cases.

Of course, Hammurabli viewed precedent within the context of specificity -- as do our courts today.  We insist that a court ruling be founded upon the specific facts of a specific case.  There is plenty of leeway within Roe v. Wade itself for a complete upending of abortion law as we know it.  If nothing else, that case is over 30 years old and depends to at least some extent on a trimester-by-trimester assessment of pregnancy which, given today's technology, is on fairly shaky ground.  And each case that comes before the court raises a set of facts which, presumably, differs from those in decisions the court has already handed down. 

Any justice, despite his or her personal views and committments, might find, given the right set of fact and argument, that she or he is compelled to vote to overturn Roe.

The most disturbing aspect of the whole Miers scenario is that the President of the United States, James Dobson of Focuis on the Family, and several other poorly informed individuals seem to think that the President is entitled to the support of his opinions from any of his nominees to the Court who eventually make it to the bench. One of Miers' supporters has said that if she is on the Court when the parental notification case comes up, she will not "disappoint the President."

In fact, she may well disappoint the President.  Once she takes the oath of office as  a Justice of the United States Supreme Court, her allegiance is to the Constitution, not to either of the other branches of government nor their leaders. 

That being the case, we should be asking how she views the Constitution and the role of a judge with respect to interpreting it.  That she devoutly and sincerely practices and draws strength from a profound faith is laudable, and will no doubt affect her approach to her work.  But it will not determine the keenness or depth of her skill set in legal processes and reasoning, nor the predilections and preferences that she as a lawyer will bring to the Court.